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In re Jacobson

Court of Appeals of Utah

April 11, 2019


          Seventh District Court, Castle Dale Department The Honorable Douglas B. Thomas No. 153700010

          Joseph C. Rust, Attorney for Appellant

          Steve S. Christensen and Clinton R. Brimhall, Attorneys for Appellee

          Judge Kate Appleby authored this Opinion, in which Judges Jill M. Pohlman and Ryan M. Harris concurred.

          APPLEBY, JUDGE.

         ¶1 Charity Stilson appeals the district court's ruling denying her request for costs and expenses incurred while serving as Landon Kirk Jacobson's guardian and conservator. We affirm.


         ¶2 In August 2015, Jacobson suffered a severe brain injury in an accident that also claimed the lives of his wife and one of their children. The district court appointed Stilson-Jacobson's sister-as his guardian and conservator. Jacobson's mother-in-law and Stilson were appointed as co-guardians of Jacobson's surviving minor children. In October 2015, the district court signed an order proposed by Jacobson's mother-in-law and Stilson that terminated the co-guardianship and allowed Jacobson to reassume responsibility for his children.

         ¶3 In December 2016, Stilson petitioned the district court to be reappointed as the children's guardian. Jacobson responded by filing a motion for permission to appoint counsel to assist him in opposing Stilson's petition. Stilson filed an objection to Jacobson's request for counsel, arguing that, as Jacobson's guardian and conservator, she was "authorized to represent him in all legal matters," and he was therefore "not in a legal position to employ a lawyer" without her consent.

         ¶4 The district court held a hearing to address Stilson's petition. At the hearing, the court first explained that "to be represented by counsel in a court proceeding [is] fundamental" and denying Jacobson that right would be "a deprivation of due process." It then expressed "concerns" that, fourteen months prior to her petition, Stilson represented to the court that Jacobson was competent to care for his children, "and now she wants to come forward and say he is not competent . . . and can't be heard on that issue." Accordingly, the court explained that it would first determine whether Stilson "should be released" as Jacobson's guardian and conservator before considering her petition to be reappointed as the children's guardian.

         ¶5 Stilson requested a "complete trial" on whether her guardianship and conservatorship over Jacobson should be terminated. In February 2017, Jacobson filed a counter-petition, asking the court to remove Stilson as his guardian and conservator. He asserted that his "incapacity [had] terminated" as he had demonstrated by "regaining his driver license, returning to his work on the farm, adequately caring for himself day to day, and caring for his . . . children for the past 14 months." He also said that "good cause exists" to remove Stilson as guardian and conservator because she "is not qualified to act as conservator" and "[f]riction within the family has arisen due to [her] appointment."

         ¶6 One week later, Stilson filed a response to Jacobson's petition to remove her as his guardian and conservator. She identified three doctors who had "treated Jacobson since his accident" and asserted that each of them had "determined that Jacobson does not have the capacity to act for himself in significant and meaningful matters, either as to his own person or as to his assets."

         ¶7 In May 2017, Stilson submitted to the district court her resignation as Jacobson's guardian and conservator. The resignation stated that "Stilson's efforts have unfortunately been made more difficult than they needed to be by some of Jacobson's family members" and "[t]his additional burden has made serving as guardian and conservator now virtually impossible." But Stilson said she "would strongly argue against" Jacobson's petition to terminate his guardianship and conservatorship and requested that the court appoint a replacement. Around the time Stilson submitted her resignation, her attorney "represented to the [court] that she desired to proceed as an interested person" in challenging Jacobson's petition.

         ¶8 One week later, the court held a conference with Stilson, Jacobson, and their attorneys. "[I]n light of [Stilson's] filed resignation," the court said it needed to conduct "an evidentiary hearing to determine whether [Jacobson] still needs a guardian and/or a conservator." The court scheduled a two-day hearing for that purpose.

         ¶9 At the hearing, various experts testified, including a neuropsychologist (Dr. E). Dr. E first evaluated Jacobson four months after the accident. In January 2017, Stilson contacted him and "expressed concerns about [Jacobson's] daily functioning, cognitive functioning, and decision-making" and requested that he "conduct a comprehensive psychological evaluation." Dr. E said that Stilson was "very emotional about the problems and concerns she reported" and his impression was that her "concerns seemed to be over the top."

         ¶10 Over about six weeks, Dr. E gave Jacobson "psychological counseling and cognitive therapy" and tested his "executive functioning" and "memory." He also spoke with Jacobson about his ability to manage money. Dr. E concluded that Jacobson did not need a guardian or conservator and could "manage and provide for his physical health, safety, and self-care." After forming his opinion, however, Dr. E "recommended [to Stilson] that [Jacobson] undergo a neurological assessment conducted by an independent evaluator."

         ¶11 A clinical and forensic psychologist (Dr. D) testified next. Stilson's attorney asked Dr. D to evaluate Jacobson after Dr. E recommended an independent neurological assessment. In forming his opinion, Dr. D relied on one interview with Jacobson-which Stilson attended-as well as a "collateral interview" with Stilson. He said he believed Jacobson needed a guardian and conservator because he "lacked the capacity to manage his finances and those of his business and children." Dr. D had a history of working with Stilson's attorney's law firm. He also worked with Stilson in a personal injury case, in which he diagnosed her with "somatic symptom disorder" and "separation anxiety disorder." Dr. D "described [Stilson] as being overly concerned about health issues."

         ¶12 Three more experts testified: a neuropsychologist (Dr. S), a physical medicine and rehabilitation doctor (Dr. L), and a psychologist (Dr. G). Dr. S recommended that Jacobson "receive continued assistance with financial and other decisions," and Dr. L "opined that [Jacobson] still needs someone to manage his financial affairs." But Dr. S "relied almost completely on the information provided to him by [Stilson]," and when Dr. L and Dr. D "were asked about [Jacobson's] abilities absent [Stilson's] assertions, both doctors admitted that they would consider [Jacobson] capable of managing his own affairs without the need for a guardian or conservator." Dr. G prepared to testify by interviewing Jacobson and reviewing his medical and surgical records as well as the testing Jacobson had completed. He offered his opinion that Jacobson did not need a guardian or conservator and "had no cognitive problems that would prevent him from safeguarding his assets."

         ¶13 After the hearing, the court ruled that Stilson had "failed to show by even a preponderance of the evidence" that Jacobson was unable to adequately and appropriately care for himself and his children. Specifically, although "her concerns may have been valid immediately after the accident and during the early stages of his recovery," they "were no longer present after her resignation." And Stilson's "continued concerns about [Jacobson] were unwarranted and not based on any facts presented to the Court." The court then issued an order terminating Stilson as guardian and conservator, ...

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